NO. 93-519 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, BOARD OF DENTISTRY, 

Plaintiff, Counter-Defendant 

and Respondent, 

BRENT KANDARIAN 

Defendant, Counter-Claimant 

and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James C. Bartlett; Hash, O'Brien & Bartlett, 

Kalispell, Montana 

For Respondent: 

I. James Heckathorn and Mike1 L. Moore; Murphy, 

Robinson, Heckathorn & Phillips, Kalispell, Montana 

Filed: 

Submitted on Briefs: August 18, 1994 

Decided: December 16, 1994 
Justice Karla M. Gray delivered the Opinion of the Court 

R. Brent Kandarian (Kandarian) appeals from an order entered 

by the Eleventh Judicial District Court, Flathead County, granting 

the State of Montana, Board of Dentistry's motion for summary 

judgment on his counterclaims. We affirm. 

Kandarian is a licensed denturist practicing in Kalispell. 

Kandarian ran an advertisement in a Kalispell paper stating that 

temporomandibular joint disfunction (TMJ) evaluations would be 

performed at Kandarian's place of business. On August 26, 1986, a 

Kalispell dentist wrote a letter to the Board of Dentistry 

informing it that, in the dentist's opinion, Kandarian was 

performing the unauthorized practice of dentistry. The dentist 

stated that evaluating TMJ was the practice of dentistry, and that 

he had personal knowledge of an offer by Kandarian to treat a 

patient with TMJ disorder via construction of a partial denture. 

On September 22, 1986, the Board of Dentistry informed 

Kandarian of the complaint and requested a response. The Board of 

Dentistry also wrote to the Board of Denturitry, informing it of 

the complaint against Kandarian. On November 6, 1986, Kandarian 

replied to the Board of Dentistry. His letter stated that TMJ 

evaluations were within the scope of his practice of denturitry, 

and that the Board of Dentistry did not have the power to regulate 

his practice. 

On November 12, 1986, the Board of Dentistry met and decided 

to request the Flathead County Attorney to file criminal charges 

against Kandarian for practicing dentistry without a license. At 
an open meeting held on December 8, 1986, the Board of Denturitry 

discussed the complaint filed against Kandarian and decided to wait 

and see what action the Flathead County Attorney would take. On 

the same day, the Board of Dentistry's counsel released the 

contents of the complaint against Kandarian to a newspaper 

reporter. An Associated Press news story subsequently reported the 

correspondence between Kandarian and the Board of Dentistry's 

counsel regarding the allegation that Kandarian was practicing 

dentistry without a license. The story quoted the Board of 

Dentistry's counsel as saying that Kandarian's response to the 

Board of Dentistry "threw down the gauntlet," and that the Board of 

Dentistry had no choice but to pursue legal action. 

On December 30, 1986, the Flathead County Attorney informed 

the Board of Dentistry's counsel that his office had decided not to 

prosecute Kandarian. On February 2, 1987, the Board of Dentistry 

filed a complaint with the District Court seeking to enjoin 

Kandarian from practicing dentistry without a license. Kandarian 

filed an answer and counterclaims against the Board of Dentistry on 

April 6, 1987. 

James Stobie, D.D.S., whom the Board of Dentistry identified 

as its expert witness, stated in his deposition that as long as a 

denturist is practicing denturitry, it would be misfeasance or 

malfeasance not to do a TMJ evaluation while fitting for partial or 

full dentures. As a result of Stobie's deposition and the Board of 

Dentistry's failure to produce testimony that Kandarian had 

performed dental work on natural teeth, the court granted 
Kandarian's motion for summary judgment on the Board of Dentistry's 

request for an injunction. In January of 1989, the District Court 

denied the Board of Dentistry's motion for summary judgment on 

Kandarian's counterclaims. 

Kandarian filed an amended answer and counterclaims on March 

13, 1989. His amended counterclaims included: violation of his 

right of privacy, wrongful injunction, intentional interference 

with business and patients, slander and libel, wrongful civil 

litigation, abuse of process, outrage and intentional infliction of 

emotional distress, and negligence. On February 8, 1990, the 

District Court vacated its earlier order and granted the Board of 

Dentistry summary judgment on Kandarian's counterclaims. The basis 

of the court's order was that the Board of Dentistry had quasijudicial immunity from suit. Kandarian appealed the grant of 

summary judgment to the Board of Dentistry on his counterclaims, 

and the Board of Dentistry cross-appealed the grant of summary 

judgment to Kandarian on its request for an injunction. 

In State Board of Dentistry v. Kandarian (1991), 248 Mont. 

444, 813 P.2d 409 (Kandarian I), this Court affirmed the District 

Court's grant of summary judgment to Kandarian on the Board of 

Dentistry's request for an injunction and reversed its grant of 

summary judgment in favor of the Board of Dentistry on the basis of 

quasi-judicial immunity. On remand, the District Court again 

granted the Board of Dentistry summary judgment on Kandarian's 

counterclaims. Kandarian appealed. 

On April 22, 1994, this Court issued an order remanding the 
case to the District Court for the court to set forth its rationale 

for granting summary judgment to the Board of Dentistry on 

Kandarian's counterclaims. The order also stated that the parties 

would have the opportunity to further brief the issues after the 

District Court issued its explanatory memorandum. On June 27, 

1994, the District Court issued its memorandum. Neither party 

filed a supplemental brief. 

The sole issue on appeal is whether the District Court erred 

in granting the Board of Dentistry's motion for summary judgment 

and in dismissing Kandarian's counterclaims in their entirety. 

STANDARD OF REVIEW 

Our standard in reviewing a district court's grant of a motion 

for summary judgment is the same as that utilized by the district 

court; we are guided by Rule 56, M.R.Civ.P. Minnie v. City of 

Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Thus, we 

determine whether a genuine issue of material fact exists and 

whether the moving party is entitled to judgment as a matter of 

law. Minnie, 849 P.2d at 214. 

PRIVACY CLAIMS 

Kandarian identifies three separate theories of recovery under 

his privacy counterclaim. His first theory is that the Board of 

Dentistry tortiously intruded on his physical and mental solitude. 

We previously have recognized the elements of an invasion of 

privacy action. "An invasion of privacy cause of action is defined 

as a 'wrongful intrusion into one's private activities in such a 

manner as to outrage or cause mental suffering, shame, or 
humiliation to a person of ordinary sensibilities.'" Rucinsky v. 

Hentchel (Mont. l994), 881 P.2d 616, 618, 51 St.Rep. 887, 888; 

citing Sistok v. Northwestern Telephone Systems, Inc. (1980), 189 

Mont. 82, 92, 615 P.2d 176, 182. 

Kandarian claims that the Board of Dentistry's efforts to 

obtain a list of Kandarian's patients through discovery was an 

attempt to invade his privacy. We reject Kandarian's argument by 

noting that the Board of Dentistry never obtained a list of 

Kandarian's patients. Even assuming arquendo that Kandarian could 

establish an attempt to invade his privacy, an attempted invasion 

of privacy is not the equivalent of an actual invasion of privacy. 

Thus, Kandarian's claim for invasion of privacy under this theory 

must fail. 

Next, Kandarian raises a false light invasion of privacy claim 

and a claim that the Board of Dentistry invaded his privacy by 

releasing private facts to the public. We have recognized the 

elements of false light invasion of privacy as: 

(1) the publicizing of a matter concerning another that 

(2) places the other before the public in a false light, 

when (3) the false light in which the other is placed 

would be highly offensive to a reasonable person, and (4) 

the actor knew of or acted in reckless disregard as to 

the falsity of the publicized matter. 

Lence v. Hagadone Investment Co. (1993), 258 Mont. 433, 444, 853 

P.2d 1230, 1237; citing Restatement (Second) of Torts § 6523 

(1977). 

The Restatement (Second) of Torts, § 652D, discusses public 

disclosure of private facts as follows: 

One who gives publicity to a matter concerning the 

6 
private life of another is subject to liability to the 

other for invasion of his privacy, if the matter 

publicized is of a kind that 

(a) would be highly offensive to a reasonable person, and 

(b) is not of legitimate concern to the public. 

Kandarian asserts that release of the contents of the complaint 

against him to the press constituted a public disclosure of private 

facts which also placed him in a false light. We conclude, 

however, that Kandarian waived his privacy rights in relation to 

the complaint. 

The Board of Dentistry's counsel released the complaint 

against Kandarian to the press on December 8, 1986. The minutes of 

the Board of Denturitry meeting that same day indicate that the 

Board of Denturitry discussed the complaint against Kandarian. The 

minutes also reflect Kandarian's statement that he wanted 

discussion of the matter to be open. In addition, Kandarian 

testified in his deposition as follows: 

Q: And that was an open meeting [the meeting of December 

8, 19861 of the Board of Denturitry? 

A: Yes, it was. 

Q: And in fact, you wanted it open; isn't that true? 

A: Absolutely. I think that reflects that in the 

minutes. I had nothing to hide and I still don't. 

Because the Board of Denturitry meeting was open to the public 

and Kandarian affirmatively desired that the complaint against him 

be discussed openly at the meeting, Kandarian waived his privacy 

claims of false light and releasing private facts to the public. 

We hold that the District Court properly granted the Board of 

Dentistry summary judgment on Kandarian's privacy counterclaims. 

7 
WRONGFUL LITIGATION CLAIMS 

Kandarian's ' counterclaims included wrongful injunction, 

wrongful civil litigation and abuse of process as separate claims. 

First, Kandarian advances a claim for wrongful injunction despite 

the fact that no injunction was issued in this case. Kandarian 

cites no authority holding that an action for wrongful injunction 

may be maintained absent the issuance of an injunction. 

Kandarian relies on Interstate National Bank v. McCormick 

(19231, 67 Mont. 80, 214 P. 949, as support for his argument. 

However, that case involved the issuance of a wrongful injunction 

in favor of McCormick against a third party which affected 

Interstate National Bank's property. McCormick is distinguishable 

from the case before us in that the court had issued an injunction 

which affected the plaintiff's property and the plaintiff succeeded 

under a theory of conversion, not wrongful injunction. McCormick, 

214 P. at 951. 

Here, the Board of Dentistry never obtained an injunction. 

Thus, Kandarian could not demonstrate that the i.ssuance of an 

injunction damaged him. We hold that the District Court properly 

granted the Board of Dentistry summary judgment on Kandarian's 

wrongful injunction counterclaim. 

With regard to Kandarian's abuse of process claim, such a 

claim can succeed only where a claimant can establish an attempt to 

use process to coerce him or her to do some collateral thing which 

the claimant could not be legally or regularly compelled to do. 

Brault v. Smith (1984), 209 Mont. 21, 29, 679 P.2d 236, 240. 
Kandarian argues that the Board of Dentistry's collateral purpose 

in filing a lawsuit was to identify a list of Kandarian's patients 

to build a stronger case against him. 

The effort to obtain the names of Kandarian's patients was 

part of the Board of Dentistry's discovery in this case. "Pressing 

valid legal claims to their conclusion, even with an ulterior 

motive, does not by itself constitute an abuse of process." 

Brault, 679 P.2d at 240. The Board of Dentistry's attempt to 

strengthen its case through discovery does not amount to an abuse 

of process. We hold that the District Court properly granted the 

Board of Dentistry summary judgment on Kandarian's abuse of process 

counterclaim. 

Kandarian also included a claim for wrongful litigation. 

However, Montana has never adopted the tort of wrongful civil 

litigation. Kandarian urges this Court to recognize the tort, but 

offers no compelling argument in favor of our doing so. Under the 

facts of this case, we decline to adopt the tort of wrongful civil 

litigation and hold that the District Court properly granted the 

Board of Dentistry summary judgment on Kandarian's wrongful 

litigation counterclaim. 

INTENTIONAL INTERFERENCE CLAIM 

Kandarian claims that the Board of Dentistry intentionally 

interfered with his business and patients by releasing the contents 

of the complaint against him to the press and instituting an action 

seeking to enjoin him from performing TMJ evaluations. 

We have stated that: 
[iln order to establish a prima facie case of tortious 

interference with business relations, the pleader must 

show that the acts (1) were intentional and willful; (2) 

were calculated to cause damage to the pleader in his or 

her business; (3) were done with the unlawful purpose of 

causing damage or loss, without risht or justifiable 

cause on the Dart of the actor; and (4) that actual 

damages and loss resulted. 

Richland National Bank & Trust v. Swenson (19911, 249 Mont. 410, 

419, 816 P.2d 1045, 1051; citing Bolz v. Meyers (1982), 200 MOnt. 

286, 295, 651 P.2d 606, 611. In order to establish a cause of 

action, the Board of Dentistry must have intentionally committed a 

wrongful act without justification or excuse. Swenson, 816 P.2d at 

1051; citing Lythgoe v. First Security Bank of Helena (1986), 222 

Mont. 163, 165, 720 P.2d 1184, 1185. 

Here, the Board of Dentistry's counsel released the contents 

of the complaint to the press at the same time the Board of 

Denturitry discussed the complaint in a meeting open to the public. 

The information was open to the public at that time; therefore, 

releasing it to the press was not wrongful 

Kandarian also alleges that, by filing for an injunction, the 

Board of Dentistry attempted to interfere with his business. The 

law in effect at the time the Board of Dentistry attempted to 

obtain an injunction against Kandarian stated: 

Notwithstanding any other provision of law, a board may 

maintain an action to enjoin a person from engaging in 

the practice of the occupation or profession regulated by 

the board until a license to practice is procured. A 

person who has been enjoined and who violates the 

injunction is punishable for contempt of court. 

Section 37-1-136(3), MCA (1985). The Board of Dentistry received 

a complaint from a dentist who claimed that Kandarian was 
performing TMJ evaluations and that TMJ evaluations constituted the 

practice of dentistry. The Board of Dentistry's action in seeking 

an injunction against Kandarian was authorized by statute and was 

not tortious. We hold that the District Court properly granted the 

Board of Dentistry summary judgment on Kandarian's intentional 

interference counterclaim. 

SLANDER AND LIBEL 

Kandarian claims that the release of the complaint against him 

to the press and statements made to the press constitute slander 

and libel. Slander and libel both require falsity. Sections 27-1- 

802 and -803, MCA. The article which Kandarian claims contains 

defamatory information provided by counsel for the Board of 

Dentistry essentially reports the fact that the Board of Dentistry 

intended to pursue legal action against Kandarian and recounts 

correspondence between Kandarian and the Board of Dentistry's 

counsel. This account of events is substantially true. 

Kandarian asserts that counsel's statements that Kandarian 

"threw down the gauntlet" by his responses to the Board of 

Dentistry's correspondence constitute slander and libel. However, 

we previously have noted that "a basic tenet of the law of 

defamation is that an expression of opinion is generally not 

actionable. " Frigon v. Morrison-Maierle, Inc. (1988) , 233 Mont. 

113, 121, 760 P.2d 57, 62. Comments by counsel for the Board of 

Dentistry amounted to statements of opinion which were not 

actionable. We hold that the District Court properly granted the 

Board of Dentistry summary judgment on Kandarian's libel and 
slander counterclaim. 

OUTRAGE AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 

Kandarian contends that the District Court erred in granting 

summary judgment on his claims of outrage and intentional 

infliction of emotional distress. Montana has not recognized a 

tort of outrage, and Kandarian offers no significant argument in 

favor of its adoption. We have stated that for a claim of 

emotional distress to succeed, 

[tlhe victim must show that the defendant's tortious 

conduct resulted either in physical or mental injury or 

in "a substantial invasion of a legally protected 

interest, 'I and that it "caused a significant impact, " 

including emotional distress "so severe that no 

reasonable person could be expected to endure it." 

Lence, 853 P.2d at 1237; citing First Bank v. Clark (1989), 236 

Mont. 195, 205-06, 771 P.2d 84, 91. 

In Lence, we affirmed the district court's grant of summary 

judgment in favor of the defendant on the plaintiff's claim of 

emotional distress. We noted that the plaintiff offered no 

evidence of severe emotional distress. Lence, 853 P. 2d at 1237. 

In the present case, Kandarian argues that an alleged invasion of 

privacy by a government agency naturally produces severe emotional 

distress, but he produces no evidence that he actually suffered 

severe emotional distress. We hold that the District Court 

properly granted the Board of Dentistry summary judgment on 

Kandarian's counterclaims of outrage and intentional infliction of 

emotional distress. 

NEGLIGENCE 

Finally, Kandarian claims that the Board of Dentistry 

12 
negligently released the contents of its complaint against 

Kandarian and negligently filed suit against Kandarian. We held 

above that Kandarian waived his right to privacy regarding release 

of the complaint. Thus, release of the complaint cannot provide a 

basis for a proper negligence claim here 

Kandarian also claims that the Board of Dentistry negligently 

filed suit against him. We disagree. As we previously noted, the 

law in effect at the time the Board of Dentistry attempted to get 

an injunction against Kandarian authorized the Board of Dentistry 

to obtain injunctions against those practicing dentistry without a 

license. Section 37-1-136 (3), MCA (1985) . The Board of Dentistry 

believed that Kandarian was practicing dentistry without a license. 

The Board of Dentistry's action in seeking an injunction against 

Kandarian was not tortious. We hold that the District Court 

properly granted the Board of Dentistry summary judgment on 

Kandarian's negligence counterclaim. 7 :7 

Affirmed . 

We concur: 

Chief Justice 

I/ Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from that part of the majority opinion which rejects 

the tort of wrongful civil litigation, as applied to the facts in 

this case. In an age when a few frivolous lawsuits threaten to 

undermine the civil justice system and preclude claims which do 

have merit, it is especially important to deter and sanction 

lawsuits like the one filed by the Board of Dentistry. The 

elements of wrongful civil litigation, as set forth in Restatement 

(Second) of Torts 5 674 (1977) are as follows: 

One who takes an active part in the initiation, 

continuation or procurement of civil proceedings against 

another is subject to liability to the other for wrongful 

civil proceedings if 

(a) he acts without probable cause, and primarily 

for a purpose other than that of securing the proper 

adjudication of the claim in which the proceedings are 

based, and 

(b) except when they are ex parte, the proceedings 

have terminated in favor of the person against whom they 

are brought. 

We have, as far back as 70 years ago, recognized a tort known 

as "malicious prosecution" in Montana (Stephens v. Conley (1914), 48 

Mont. 352, 138 P. 189), based on the important public policy that 

everyone has a right to be free from unjustifiable litigation. The 

right to be free from unjustifiable civil litigation, as described 

in 5 674, is simply a more specific approach from a broad range of 

rights to be free from unjustifiable litigation and the attendant 

invasion of a person's privacy and exhaustion of an individual's 

financial resources. 
I disagree with the majority's conclusion that "Kandarian 

urges this Court to recognize the tort, but offers no compelling 

argument in favor of our doing so." The very facts set forth in 

this Court s previous decision, State Board ofDentistry v. Kandarian ( 19 9 1 ) , 

248 Mont. 444, 813 P.2d 409 (Kandarian I), establish a compelling 

argument in favor of doing so. In that case we noted: 

[Ol n February 2, 1987, the Board filed for an injunction 

against Kandarian. 

The Board identified James Stobie, D.D. S., as the 

expert witness who would testify as to whether TMJ 

evaluations were within the practice of denturitry. His 

deposition stated that as long as a denturist is 

practicing denturitry, it would be misfeasance or 

malfeasance to do a TMJ evaluation while fitting for 

"partials" or "fulls." 

Kandarian counterclaimed and moved for summary 

judgment. The Board asked for "follow up discovery" and 

represented that it had witnesses who would be contacted 

and who would produce, by way of af f idavit, evidence that 

Kandarian had done nondenture work on them. 

On January 8, 1988, the court dismissed the 

complaint against Kandarian because the Board had failed 

to produce affidavits showing that Kandarian had 

performed work on the natural teeth of two individuals 

previously named by the Board. 

Kandarian I, 813 P.2d at 411 (emphasis added) . 

As I noted in my concurring and dissenting opinion to our 

prior decision: 

[TI he Board of Dentistry made no reasonable inquiry prior 

to filing its claim for injunctive relief in naming 

Kandarian as a defendant. A member of the Association 

had sent it a copy of an ad, indicating that Brent 

Kandarian, a denturist, was available for "TMJ 

evaluations." 
However, none of Kandarian's patients were 

interviewed; no investigation was done; and no experts 

were consulted prior to the filing of suit. 

After suit was filed, the Board finally retained 

James L. Stobie, D.D.S. He was identified in court 

documents as the Board's expert for the purpose of 

establishing that it was a violation of the Dental 

Practice Act for a denturist to perform TMJ evaluations. 

When he was deposed, however, his testimony was to the 

contrary. 

Subsequent to Dr. Stobie's testimony, the defendant 

moved for summary judgment. At the time of that hearing, 

the Board's attorney offered to provide the testimony of 

two witnesses who would say that Kandarian had worked on 

their teeth, even though it was not for the purpose of 

fitting dentures. The Board was given ten days to 

provide such information, but failed to do so. In fact, 

one of the witnesses was subsequently offered as a 

witness by Kandarian and testified contrary to the 

representations of the Board's attorney. 

Kandarian I, 813 P.2d at 413 

Kandarian presented evidence that, at the time the Board of 

Dentistry frivolously sought its injunction, its purpose was to 

discredit him as chairman of the Board of Denturitry before the 

Montana Legislature. Therefore, I conclude that the facts in this 

case alone are sufficient to provide a compelling reason for 

adopting and applying, in this case, a cause of action for wrongful 

civil litigation. 

However, I am also confused by the inference in the majority 

opinion that the tort of wrongful civil litigation is somehow 

radically different than the common law which already exists 

pursuant to the present tort of malicious prosecution. It is not. 

It is simply a more specific variation of the same tort 
For these reasons, I dissent from the majority opinion. I 

would adopt the tort of wrongful civil litigation in Montana. I 

conclude that the plaintiff has proven sufficient facts in this 

case to support a cause of action based on that tort. Therefore, 

I would reverse the District Court's order awarding summary 

judgment to the defendant. 
December 16, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the fallowing certsed order was sent by United States mail, prepaid, 

to the following named: 

James C. Bartlett, Esq. 

Hash, O'Brien & Bartlett 

P.O. Box 1178 

Kalispell, MT 59903- 1178 

I. James Heckathorn, Esq. & Mike1 L. Moore, Esq. 

Murphy, Robinson, Heckathorn & PhilIips, PC. 

P.O. Box 759 

Kalispell, MT 59903-0759 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA